Blog
January saw the opening of our current West Palm and Miami offices bringing the number of our South Florida conference rooms to 21. I have enjoyed working in our West Palm, Plantation, and Miami offices and look forward to being there more frequently in 2016.
Here is a partial list of what some of my UWWM colleagues have been up to in 2015.
Under the circumstances, my ethical and professional obligations are obvious, at least to me; confront the immovable forces with a discussion which assures that the decision-making is informed. This means (1) Trying to get the parties what they want; failing that, (2) Exploring the options available; and (3) Always making sure decisions are informed and consistent with self-determination. For my efforts, I may receive a little bit of “shoot the messenger.” Defense counsel may not agree with my observations in mediation. Fair enough; however, this is sort of the point when the alternative is turning decision-making over to others; you may get a decision you don’t agree with; at least my observations can’t hurt you.
I recently had the pleasure of moderating UWWM’s webinar, “The Seven Deadly Sins in Business Negotiation” featuring UWWM’s neutral Judi Lane. I was very happy to do so. I had previously mediated for Judi many times and had great respect for her as an attorney and as a negotiator. She also always demanded the most of me as a mediator. When she joined UWWM, she and I continued our exchange of thoughts and experiences with respect to mediation strategy and negotiation. I continue to learn a lot from her and, I hope, she from me. A common subject that always surprises me, although perhaps shouldn’t after so many years, is the extent to which a human element drives many business negotiations.
In cases where a defendant is concerned about the financial impact of a settlement, accounting implications, or the risk going forward, we recommend engaging a specialty risk consulting firm to assist in providing a quantitative and qualitative analysis of the settlement risk, and to help structure a settlement underwritten by insurance. Most importantly, this provides a mechanism to achieve a full risk transfer of the liability through the use of a specialty insurance product. Often, a claims-made settlement structure, acceptable to class counsel and the court, is negotiated. The insurance company issues the appropriate policy with limits adequate to fund it at a substantially lower total cost than a common fund.
I recently had the pleasure of attending the 2015 annual retreat of the Jacksonville Association of Defense Counsel at the Ritz Carlton on Amelia Island. Not only was the location a treat, but also the program, moderated by Boyd & Jenerette appellate attorney Kansas Gooden, was as good as any I have attended. UWWM was a sponsor of the event. UWWM Shareholder Bob Cole spoke on recent trends in mediation and ADR, including proposed amendments by the Florida Bar ADR Rules and Policy Committee currently under consideration by the Florida Supreme Court.
Basic goals in any class action include reaching broad relief for the class and finality for the defendant. The relief must be fairly noticed, claim-available and fair in relation to the multiplicity of claimants. One newly created instrument for affordable compensation is the implementation of class action insurance. This has been very effective for our clients, and consists of a post lawsuit settlement insurance product designed to provide protection against the risk and uncertainty of class action settlements in exchange for a negotiated premium. In these matters, cases fail to settle because defendants fear the exposure, risk and uncertainty of a large claims-made settlement. With class action settlement insurance, settling companies can mitigate the financial burden and uncertainty caused by a large settlement with unpredictable claims.
Not only did I have the opportunity to see how a jury values a particular case, but also I gained insight into their thinking and decision making. Some of my assumptions were shaken; others were confirmed. I was concerned about the actual size of the pothole. This jury recognized that it was large enough to cause the damage complained of, so conflicts in testimony regarding the size did not bother them. This jury did not concern itself with minor inconsistencies in testimony, whereas my legal mind did. This jury did not seek to distinguish between symptoms from prior injuries and this one, whereas I did. This jury did not fall prey to the adage that juries are emotional and unpredictable. This jury saw through expert witnesses who were not credible. This jury did have sympathy for the plaintiff, but did not seek to punish the defendant.
I was released from the jury just prior to its retiring to deliberate the verdict. I was terribly disappointed that I was not going to continue to participate in a process I had talked about for years in mediation. However, I did maintain contact with two of the jurors and interviewed them separately. I prepared a long list of questions and had them rate those factors that significantly influenced their decision making. One of the jurors, a cellphone tower contractor, believed the contractor was at fault from the beginning of the trial. He was well aware of the responsibilities a contractor has for maintaining the safety of his job site.
The jury’s methodology for determining damages was the most surprising aspect of the trial. The plaintiff’s lawyers submitted evidence showing the medical bills incurred by the plaintiff as a result of the injury were $95,000. The defense asserted some minor arguments regarding the medical bills but did not sufficiently persuade the jury to reduce those bills. Consequently, the jury awarded all the future medical bills requested by plaintiff and increased that figure for the cost of inflation. In closing argument, the plaintiff’s attorney also requested the jury award $150,000 in past pain and suffering and $150,000 in future pain and suffering. I latched on to these figures and assumed, based on my mediator mentality, the plaintiff’s attorney would think a $200,000 pain and suffering award would be reasonable.
The plaintiff asserted the construction company had been negligent by failing to exercise due care in re-routing traffic away from the pothole. There was no question the construction company knew about the pothole; the issue was what duty it had to protect the public from the pothole. The defendant’s expert opined that re-routing traffic was difficult because it required agency approval and was, therefore, not a practical solution. The plaintiff’s expert testified , to meet the duty of care, the defendant had to re-route the traffic.